13 June 2016

Bureaucracies

'Is Our Legal Order
Just Another Bureaucracy? ' by
Robert P. Burns
comments

A classic formulation portrays bureaucracy as the characteristic modern institution, incomparably effective as the home of instrumental rationality and domination through knowledge. We often understand our legal order as controlling bureaucracy by insisting that bureaucrats “play by the rules.” Courts, in this view, uphold the rule of law in the face of a threatening purely instrumental reason. However, an understanding of the courts as the enforcers of legal rules fails to offer an account of how the legal order itself is not just another bureaucracy. This essay argues that we must look elsewhere for an understanding of the legal order as something more than bureaucratic.

Burns suggests that

In our usual public discourse and debate, the rule of law is a very good thing, so good that we
are committed to exporting it around the world. By contrast, bureaucracy is very
bad, a threat to
human freedom and flourishing. Indeed, one of the distinctively modern themes, associated with
Max Weber and Franz Kafka, is “organizational gothic,
with organ
izations as ‘sites of darkness,
labyrinths with endless corridors’; and locked doors hiding secrets shifting from the ‘dark street’
to the ‘cramped office’ ...”
So it would seem to be a very simple thing to distinguish a legal
order
from a bureaucracy.
Alas, it turns out not to be so. Our notions of the rule of law and of
bureaucracy are far from univocal. Indeed,
they seem “essentially contested.”

Casting some light on this distinction is not simply a matter of attaining conceptual
clarity
for its own sake. One of our major political
tasks
concerns what Lon Fuller called our
“modes of social ordering,” what kinds of institutions and practices are appropriate to bring good
order to the more or less distinct realms of social life. Where should we resort to
informal
bureaucratized psychological pressure, as we do in our criminal justice system 95% of the time?
Where should we rely on the instrumental application of social scientific methods, as we mainly
do in Antitrust Law?
Where should we rely on the broadly clinical judgment of administrators
“bred to the facts” and committed to the relatively unconstrained definitions of agency purpose?
Where is it important to strictly follow predictable formalist modes of legal reasoning, designed
to enhance predictability and control official discretion?
Where should we provide plenary
narrative
-
dramatic consideration of a human situation that relativizes “the rule of law as a law of
rules,” as we do in the relatively few jury trials we still conduct.
Some of these approaches can
fairly be called bureaucratic,
and some not,
and so it is useful to get a grip on the
practical
meaning of the terms.

My argument
here
proceeds in twelve steps.
First, I describe why (almost) no one wants
to be a bureaucracy and why American lawyers would recoil from
considering our legal order to
be just another bureaucracy. Second, I provide a classical understanding of bureaucracy that still
has power, as a form of social ordering that effectively deploys instrumental reason in the service
of a predetermined goal set by a sovereign will. Third, I recount a familiar understanding of the
relationship between courts and bureaucracies, in which courts impose rules that constrain the
wholly instrumental pursuit of those goals. Fourth, I puzzle over the obvious problem
for this
latter understanding, namely
that bureaucracies can be highly rule-bound without ceasing to be
bureaucracies.
Fifth, I concede that courts may
have
a different attitude toward rules than do
bureaucracies, but that this distinction does not necessarily signal a difference in kind. And,
sixth, post-formalist courts have relaxed that different attitude to the point where courts begin to
look like premodern bureaucracies. Still and this is my seventh point, there remain aspects of
our legal order that are discontinuous with bureaucratic ordering. They are, eighth, currently
under siege, something that may simply pose a question of political will or, more ominously,
reflect
an inevitable
“the bureaucratization of the world” and the epochal dominance
of
instrumental reason in
modernity. Ninth, these residual elements in our legal order still allow
some judges and juries to realize the values implicit in our deepest convictions
–
what Paul
Riceour called
an ethics already realized
–
and,
tenth,
allow us
to make judgments of relative
importance among the inevitably competing values in a world where “justice is conflict.”
Eleventh,
on the theoretical level, that would suggest an account of the way in which our trial
and appellate procedures actually
could
provide access to the valid norms implicit in our
common life.
Twelfth, in our post-modern world, this theoretical account would probably rely on a kind of realism in which we know these norms because we are immersed in them through
our practices.

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